WHERE A COURT’S DETERMINATION TO ENHANCE A DEFENDANT’S SENTENCE IS BASED SOLELY ON CALCULATIONS DRAWN FROM CERTIFIED PUBLIC RECORDS OF DEFENDANT’S PRIOR INCARCERATION, SENTENCE ENHANCEMENT CAN BE IMPOSED BY A JUDGE (AS OPPOSED TO A JURY) (FIRST DEPT).

The First Department, reversing Supreme Court, determined the question whether periods of incarceration which tolled the look-back period for enhancement of defendant’s sentence can be determined by a judge, as opposed to a jury:

The court granted defendant’s CPL 440.20 motion and concluded that the initial predicate statement was facially insufficient and that, pursuant to Erlinger [602 US 821], tolling determinations must be made by a jury. The court held that it could “neither determine, nor convene a jury to determine[,] that defendant was previously incarcerated at a particular time and place in an effort to enhance his sentencing.” * * *

​Defendant moved under CPL 440.20 to set aside the persistent violent felony offender sentence, arguing that the predicate felony statement was facially insufficient because it omitted periods of incarceration necessary to toll the statutory ten-year lookback period. Defendant contended that, under Erlinger, a jury was required to make the factual determination of whether any tolling finding would bring his prior conviction within the lookback window. * * *

As this Court found in People v Young (…2026 NY Slip Op 02883 […2026]), Erlinger does not apply to the tolling protocol contained in New York’s predicate felony sentencing statutes. These involve a “rote arithmetic calculation to be made based on certified public records” … . Such objective determinations fall within the narrow Almendarez-Torres exception permitting judicial determination of “the fact of a prior conviction” and associated ministerial facts such as dates.

… [T]he sentencing court erred in holding that tolling findings must be made by a jury and that it therefore could not sentence defendant as a persistent violent felony offender. As in Young, the tolling determination at issue required the court to review official admission and release records as well as calculate the periods during which defendant was confined. This administrative determination does not implicate the Sixth Amendment under Erlinger but rather falls within the Almendarez-Torres exception. People v Sabater, 2026 NY Slip Op 05459, First Dept 9-24-26

Practice Point: Where sentence enhancement is based solely on certified public records of prior incarceration, there is no requirement that a jury, as opposed to the judge, make the enhancement determination.